IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130909

Docket: 10-4756

Registry:
Victoria

Between:

Debra Cooknell

Plaintiff

And:

Jeffrey Quinn and
Kenneth Cooknell

Defendants

Before:
Master Bouck

(Sitting
as Registrar)

Reasons for Decision

Introduction

[1]            
This is an assessment of the plaintiff’s bill of costs following
settlement of the action.

[2]            
Initially, the defendants took issue with several of the tariff items
and disbursements claimed. However, most of those objections were withdrawn
such that by the conclusion of the hearing, only the following disbursements
were subject to assessment:

·      
Ms. Barbara Phillips;

·      
Malcolm & Associates;

·      
Dr. G. Stimac; and

·      
MRI (privately funded)

[3]            
The defendants submit that none of these disbursements were necessary or
proper for the prosecution of the plaintiff’s personal injury claim. The
reasonableness of the charges is also challenged if the disbursements are found
to be necessary or proper on this assessment.

[4]            
All of these above identified individuals have filed affidavits in
support of their respective charges. Only Dr. Malcolm attended the
assessment to be cross-examined on his affidavit.

[5]            
The assessment of these disbursements requires, among other things, a consideration
as to whether a disbursement is necessary or proper when incurred before any
medical advice is obtained on the question of injury diagnosis and causation.

Background Facts

[6]            
The plaintiff claims to have suffered injuries in a motor vehicle
accident which occurred on February 1, 2009. Ms. Cooknell was a passenger in
her husband’s vehicle at the time of the accident.

[7]            
The B.C. Ambulance Service attended the accident scene. Ms. Cooknell
was transported to hospital and there underwent various testing, including a CT
scan.

[8]            
Within a few days of the accident, the plaintiff and her son met with
Sean Sweeney, the counsel who had conduct of this action. Mr. Sweeney
deposes as follows:

3.         Ms. Cooknell retained me a few days after the
Accident. When I met her, she was in acute distress. She was unable to sit up
unassisted and at times, she rested her head on my desk while I obtained
information from her son, Ken Cooknell Jr. From the two of them, I learned that
she had memory gaps describing the accident and indicated she hit her head
inside the vehicle. Ms. Cooknell looked very impaired and like she wanted to
fall asleep. She described having a severe headache, vomiting, dizziness,
balance, comprehension, and various physical complaints. Her son told me that
she required assistance for basic tasks. Prior to the Accident, Ms. Cooknell had
been working part-time, while also receiving provincial disability. Due to her
nausea and dizziness, she could not complete all of my firm’s record
authorizations.

4.         Ms. Cooknell and I
met again a few months later. She attended my office with her son. She appeared
very impaired, dazed and confused. She complained of chronic headaches, head
tingling, nausea, fatigue, disorientation, impaired hearing, and decreased
memory.

[9]            
Mr. Sweeney’s affidavit does not specifically address when he retained
each of Ms. Phillips and Drs. Malcolm and Stimac. Nor do these individuals
specify the date of first contact or retainer in their respective affidavits.
There is a telephone message slip suggesting that Malcolm & Associates were
retained in May 2009.

[10]        
It is apparent from Ms. Phillips’ invoice that she was retained almost
immediately after the first meeting between the plaintiff and counsel. The
invoice is dated February 22, 2009, and charges $1,200 for an initial
assessment report. In that report, Ms. Phillips states:

This report is intended as an initial assessment of Mrs.
Cooknell’s present physical, functional and cognitive status as well as her
present needs with regard to assistive devices, medical equipment and
medical/professional services and support services to assist her to recover
from injuries sustained in her accident. It will also take into consideration
cognitive/emotional changes sustained in this motor vehicle accident and their
effect on function.

This report is intended as an
initial assessment only. It will outline Mrs. Cooknell’s immediate needs
for assistive devices, medical equipment, medical/professional services and
support services. It will not reflect her future needs. There will be a cost
attached to these recommendations as well as a rationale for their necessity.

[11]        
Ms. Phillips accompanied Ms. Cooknell to the latter’s first post-accident
medical appointment. That appointment was with the plaintiff’s family doctor, Dr. D. Smith,
and took place on February 10, 2009. Dr. Smith has been the plaintiff’s family
doctor for more than a decade. The evidence does not disclose whether
plaintiff’s counsel had any discussions with or received information from
Dr. Smith following this examination.

[12]        
At some point following the accident, Mr. Sweeney received the ambulance
crew report, interviewed the attending paramedic, and obtained statements from
the lay witnesses to the accident.

[13]        
The timing of these events is not specifically addressed in the
evidence. The lay witnesses’ statements were not signed until February 2010.

[14]        
It would appear that the next investigation undertaken at the direction
of plaintiff’s counsel was to have the plaintiff attend a neuropsychological
assessment with Malcolm & Associates. The plaintiff first attended for that
assessment in July 2009.

[15]        
By this time, plaintiff’s counsel was able to provide Malcolm &
Associates with pre and post-accident medical information, including the
following:

·      
pre-mva records for the period of April 15, 2003 to January 12,
2009;

·      
post-mva clinical records for the period of February 9 to May 12,
2009 (two separate sources);

·      
head and cervical spine CT taken on the day of the accident;

·      
various hospital records, including for a period of February 1
and 2, 2009.

[16]        
According to Dr. Malcolm’s subsequent report, the hospital emergency
room notes record the plaintiff’s complaints of ongoing headaches, nausea,
ringing in the ears and memory loss. The emergency room notes record a Glascow
Coma Scale score of 15 but “confusion is also noted which appears to contradict
this score”.

[17]        
For reasons unexplained in the evidence, the ambulance crew report was
not included in the initial medical records provided to Malcolm &
Associates. As will be further explained below, the crew report was delivered
subsequent to the July 2009 testing session. The delivery of this information
led to further testing of the plaintiff in September 2009.

[18]        
The crew report records an “impression” that the plaintiff suffered a
“traumatic head injury with seizures”. The handwritten notes appear to state
that the plaintiff struck her husband’s head and suffered a lengthy seizure
following the collision.

[19]        
However, other records provided to Dr. Malcolm (and presumably in the
possession of plaintiff’s counsel prior to July 2009) reveal that serious
questions were being raised by medical experts concerning the plaintiff’s alleged
accident-related complaints and ongoing symptoms. For example, the plaintiff
was seen by a neurologist in March 2009 on a referral from her family
physician. In his consult report dated March 20, 2009, the neurologist could
not find a source for the plaintiff’s headache symptoms. The plaintiff’s
“complex history”, including bouts of depression and hysterical paralysis, is
noted in the records. In 2004, a psychiatrist had diagnosed the presence of
personality disorder. An otolaryngologist suggested that the plaintiff was
malingering with respect to a hearing test conducted one month after the
accident. A CT scan performed in May 2009 revealed no abnormalities.

[20]        
Dr. Malcolm has provided a medical-legal report dated October 23, 2009.
Although Dr. Malcolm found some inconsistencies in the plaintiff’s testing
results, he was able to opine that “symptoms consistent with a traumatic brain
injury have been identified”. Dr. Malcolm goes on to state:

Generally, a brain injury in considered to be moderate in a
Glasgow Coma Scale score of 9-12 is noted and if there has been a loss of
consciousness of 30 minutes to 6 hours. Therefore, Ms. Cocknell may be
considered to have suffered at least a mild traumatic brain injury, with the
possibility of the severity level being moderate.

and

…at least some of the described
symptoms are attributable to the motor vehicle accident.

[21]        
Meanwhile, plaintiff’s counsel directed Ms. Cooknell to obtain an MRI.
Mr. Sweeney deposes that an MRI was “necessary to establish the
evidentiary basis of a brain injury”. Mr. Sweeney further deposes that a
“positive finding on MRI can provide critical corroboration” of a brain injury.

[22]        
On June 24, 2010, the MRI was obtained privately at the cost of $875.
The evidence does not address any urgency in obtaining this MRI. Dr. Smith
suggested the same investigation in his later medical legal report. The
evidence does not say that a publicly funded MRI could not be obtained.

[23]        
The results of the MRI included a finding that there was “no evidence of
acute or remote intracranial trauma”. Other findings were noted with a
recommendation that an MRI be undertaken in six months’ time. There is no
evidence that such a follow-up was pursued.

[24]        
Dr. Smith delivered a medical legal report to plaintiff’s counsel on or
about July 22, 2010. In his report, Dr. Smith reviews the plaintiff’s
complicated medical history, the post motor vehicle accident symptoms and
investigations, and offers the following opinion:

…it is very difficult to come to
definite conclusions regarding Mrs. Debra Cooknell. Mrs. Cooknell has
a long-standing history of headaches. She has a long-standing history of
functional disorder usually involving head pain, various body pains usually on
the right hand side and episodes of passing out.

And further:

It is my opinion that Mrs. Cooknell suffers from long-term
depression and anxiety and it is my opinion that her anxiety was worsened by
the motor vehicle accident. I have no indication that she suffered an actual
severe closed head injury as all investigations to date post accident have been
basically normal. I am not a Psychiatrist. It would be my recommendation that
Mrs. Cooknell be reviewed by a Psychiatrist to determine once again the
extent of the psychiatric involvement in her ongoing complaints and in her
initial complaints.

Mrs. Cooknell has not worked for
years so I do not feel there has been any impact on her vocational disability.
Regarding her general disability, her anxiety has increased to the point where
she feels she is unable to leave her house without accompaniment. It is my
opinion that the level of her anxiety has been increased since the motor
vehicle accident. Her activities of daily living are markedly restricted,
partly due to her anxiety and also due to her ongoing complaints of a feeling
of inability to concentrate and I do not know why this inability persists, but
I do feel this may be functional.

And:

…I do not feel that the injuries
are significant but are mainly of worsening of anxiety due to the accident.

[25]        
The notice of civil claim was issued in November 2010. The plaintiff
alleges to have suffered various injuries in the accident, including hearing
loss, visual disturbance and brain injury.

[26]        
The action was subsequently set for a five-day trial commencing
April 8, 2013.

[27]        
In February 2011, Dr. Stimac provided his services as a neuroradiologist.
Dr. Stimac is a Washington State based physician. He was retained by
plaintiff’s counsel to review various imaging and prepare a medical-legal
report on whether that imaging supported a traumatic brain injury.

[28]        
Dr. Stimac’s report of February 10, 2011, states that:

…the radiographic examinations
do not permit a diagnosis of traumatic brain injury. The underlying medical and
neuropsychiatric presentation and the radiographs suggest alternative causes
for her symptoms.

[29]        
Despite this opinion, plaintiff’s counsel deposes that he would have
relied on this report at trial.

[30]        
Dr. Stimac gives examples of the time “typically” spent by him in
conducting investigations and preparing reports. He did not prepare a “full”
report and the total time spent in relation to the matter is set out as 4.9
hours. Dr. Stimac spent 1.7 hours preparing a one-half page report.

[31]        
The events described above represent only a portion of the medical
investigations pursued on the plaintiff’s behalf. However, the charges incurred
for these investigations are the most significant of the disbursements claimed
in the bill of costs. The plaintiff’s bill seeks just over $23,000 in fees,
disbursements and taxes.

[32]        
On January 31, 2013, the plaintiff’s claim was settled with the
defendants paying $30,000 plus costs to be assessed.

Discussion

[33]        
Collectively, the parties rely on more than one dozen authorities. With
respect to the approach to be taken by the registrar on this particular
assessment, the following tests or principles are most applicable:

1. A disbursement will be disallowed if
determined to be a result of extravagance, negligence, mistake, excessive
caution or zeal, as judged by the situation at the time when the disbursement
was incurred: Van Daele v. Van Daele (1983), 56 B.C.L.R. 178 (C.A.) at
para. 109;

2. The Supreme Court Civil Rules (the
“SCCR”) “have placed new emphasis on the caution against expenses that
are extravagant or the result of excessive caution or zeal …”: Stapleton
v. Charambidis, 2010 BCSC 1642. The concept of
proportionality has always been alive in the costs assessment process: Kern Chevrolet
Oldsmobile Ltd. v. Canadian Pacific Ltd. (1986), 7 B.C.L.R. (2d) 170
(C.A.);

3. In cases where factual assumptions must
be made before costly expert opinions can be obtained, the disbursement for
that opinion must be premised on a thorough and reasonable attempt to ascertain
the assumed facts in order to give efficacy to that report. This is
particularly so if it is sought to charge those costs against the other party
on what really amounts to an almost agency of necessity basis: Fung v.
Berkun (1982), 36 B.C.L.R. 352 (S.C.) at para. 8;

4. A “necessary” disbursement is one which
is essential to conduct the litigation. A “proper” disbursement is one which is
not necessary but is reasonably incurred for the purpose of the proceeding: MacKenzie v.
Darke, 2003 BCSC 138 at para. 18;

5. When considering whether a disbursement
is proper, the correct viewpoint to be adopted by a taxing officer is that of a
sensible solicitor sitting in his chair and considering what, in light of his
then knowledge, is reasonable in the interests of his client: Francis v.
Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing
officers ought not to second guess a competent counsel doing a competent job,
solely on the grounds that other counsel might have been more sanguine or less
cautious in determining how the job ought to be done: MacKenzie v. Darke at
para. 7;

6. Disbursements incurred based on reasoning
that is equivalent to “just in case” or “you never know” will not be found to
have been reasonably incurred, or to put it another way, they will be found to
be extravagant or the result of excessive caution or zeal: Phelan v.
Newcombe, 2007 BCSC 714; and

7. A disbursement will be disallowed when it
appears that its only purpose is to shore up an unsubstantiated claim: Dulay
v. Sahl, [1990] B.C.J. No. 76 (S.C.).

[34]        
The defendants’ submission is that plaintiff’s counsel did not act
reasonably by incurring any of the impugned disbursements. There was never any
positive medical finding of a brain injury justifying the investigations by
Drs. Malcolm and Stimac. Nor was there any justification whatsoever in
proceeding with a privately funded MRI. Furthermore, counsel had no basis to
retain Ms. Phillips as there had yet to be any medical investigation (let
alone findings) on the question of causation for the plaintiff’s post-accident
complaints. All of these disbursements were incurred, say the defendants, as a
result of excessive zeal.

[35]        
Counsel for Ms. Cooknell justifies the disbursements on the basis that
the plaintiff presented herself subjectively as a brain-injured individual. As
such, counsel proceeded to prosecute the claim on the basis that a brain injury
was suffered in the accident.

[36]        
It is a fine line to be drawn between “second guessing” competent
counsel and determining that counsel acted with excessive zeal or extravagance
in incurring the impugned disbursements. On that question, I do not understand
Master Horn’s comments in MacKenzie v. Darke to mean that the
registrar must defer to counsel’s judgment on all matters and essentially issue
a carte blanche to incur disbursements at the ultimate cost to the defendants. Such
an approach goes against all of the well-established authorities and makes the
assessment process meaningless. Master Horn’s comments ought to be
considered in their context. The actual retention of an expert was not in issue
in that assessment. The issue was whether it was necessary or proper to retain
a new expert or stay with an expert who already provided an opinion with
the latter choice being more costly at the end of the day.

[37]        
Upon consideration of all of the evidence and with an attempt to sit in
that sensible solicitor’s chair, I have concluded that all but one of the
impugned disbursements should be disallowed. I find that it was proper, but not
necessary, for the plaintiff to retain Malcolm & Associates. However, the
charges claimed for this particular expert will be reduced.

MRI

[38]        
Dealing firstly with the MRI disbursement, the facts of this case are
somewhat analogous to those described by then Registrar Blok in Phelan v.
Newcombe.

[39]        
Although Dr. Smith did recommend an MRI in this case (it is not clear
exactly when), there is no explanation offered for proceeding to a private
clinic when a publicly funded scan was available — or at least no evidence to
suggest that such a process was unavailable. As the MRI charge is disallowed on
this basis, I do not need to consider whether such an investigation was
necessary or proper.

Ms. Barbara Phillips

[40]        
In my view, it was premature for plaintiff’s counsel to retain
Ms. Phillips’ services within days of the accident and after only one meeting
with the plaintiff. Plaintiff’s counsel does not address why these services
were necessary beyond somewhat generic statements to that effect. The evidence
suggests a cookie cutter approach to the retention of this type of expert
without regard to the peculiar circumstances of this plaintiff. This
disbursement is disallowed in its entirety.

Dr. G. Stimac

[41]        
Dr. Stimac’s services are said by the plaintiff to be necessary and
proper in “interpreting” various medical images and possibly revealing a brain
injury.

[42]        
Plaintiff’s counsel deposes that the plaintiff’s subjective symptoms
necessitated this investigation. Whether the report was used to settle the
plaintiff’s claim is irrelevant as that was not the purpose for which this
report was commissioned.

[43]        
The medical evidence in the possession of plaintiff’s counsel at the
time that Dr. Stimac prepared his report (and thus apparently retained)
did not support a brain injury claim.

[44]        
As submitted by the defendants, by this time multiple medical
professionals in British Columbia had already assessed the plaintiff and
reviewed the MRI results. None of these professionals expressed any ambiguity
about the MRI results or suggested even a remote possibility of brain injury.
To the contrary, the medical experts overwhelmingly attributed the plaintiff’s symptoms
(except for anxiety) to causes other than the accident. The evidence does not
address what Dr. Stimac could have opined on, different from the opinions
already obtained.

[45]        
Moreover, the plaintiff did not act reasonably in commissioning a report
which essentially confirmed the opinions of various other medical personnel. As
the defendants submit, the report was redundant.

[46]        
In addition to reflecting excessive zeal, I find that this disbursement
was an extravagance on the part of the plaintiff and must be disallowed.

Malcolm & Associates

[47]        
The timing and purpose of the investigation by Malcolm & Associates allows
me to conclude that this disbursement was properly incurred.

[48]        
Dr. Malcolm was extensively cross-examined on both his specific services
provided in this matter and the general scope of his expertise.

[49]        
With respect to this second issue, the defendants sought to demonstrate
that the content of Dr. Malcolm’s eventual report went beyond the opinions that
this expert might be allowed to offer at trial: Meghi v. Lee, 2009 BCSC
1542. As such, the report was useless and no related charges ought to be
allowed.

[50]        
The court in Meghi determined that a neuropsychologist is not qualified
to diagnose a brain injury and the manner in which it was incurred: para. 30.
Dr. Malcolm can give an opinion on whether test results as evaluated by
him are of a nature, kind, or quality seen in people who have been diagnosed as
having had organic brain injuries: para. 31. Of note, the Meghi decision
was issued on July 3, 2009, thus in advance of any testing or reporting by
Malcolm & Associates.

[51]        
This objection does not neatly fall within any of the categories listed
in Bell v. Fantini (#2) (1981), 32 B.C.L.R. 322, and decisions that have
followed. In any event, the objection requires the registrar to undertake a voir
dire on the admissibility of the report as if the action had proceeded to
trial. Such an exercise is beyond the scope of the registrar’s function at a
costs assessment: Morrisette v. Smith (1990),
39 C.P.C. (2d) 30. The objection does not address the necessity
and propriety of obtaining a neuropsychological opinion in the first instance.

[52]        
Malcolm & Associates was retained within the first six months following
the motor vehicle accident. While there was certainly some medical evidence in
the possession of plaintiff’s counsel that cast some doubt on a diagnosis of
brain injury, I find that it was reasonable on the part of plaintiff’s counsel
to pursue this type of investigation at this time.

[53]        
Malcolm & Associates put the plaintiff through a series of tests on
July 15, 2009. The testing was stopped before completion as the
psychometrist expressed concern over the validity of the results. Ms. Cooknell
was interviewed by Dr. Malcolm either that day or the next. After
considering the outcome of the limited testing and interview, Dr. Malcolm
reported to plaintiff’s counsel that Ms. Cooknell’s symptoms were not
consistent with a brain injury. Dr. Malcolm describes the testing results as
“dramatically poor”.

[54]        
Subsequent to this verbal report, plaintiff’s counsel forwarded a copy
of the ambulance crew report to Malcolm & Associates. Dr. Malcolm
recommended re-testing the plaintiff, primarily on the basis of the Glasgow
Coma Score and other post-accident symptoms recorded in the crew report. In
cross-examination, Dr. Malcolm admitted that he had reservations about the
plaintiff’s self-report of injuries and symptoms. Nevertheless, it is not
unusual to re-test an individual in light of new medical information. Moreover,
the current professional protocol is to perform such tests on an individual as
soon as possible after the alleged injury-inducing event.

[55]        
It was after this second round of testing that Dr. Malcolm offered the
opinion described above. A further round of testing was recommended in one
year’s time. Apparently, that further testing was not pursued.

[56]        
In cross-examination, Dr. Malcolm described his opinion as
“inconclusive” and conceded that only a medical doctor (a neurologist was
suggested) could diagnose the existence of an actual brain injury.

[57]        
This is an instance where the registrar ought not to second guess
counsel’s judgment. The investigation of the plaintiff’s claim was in the early
stages. Given the plaintiff’s subjective symptoms, a brain injury could not be
ruled out. Whether that injury was a result of the motor vehicle accident was
yet to be determined. However, a neuropsychologist might be able to opine on
whether the symptoms were consistent with a brain injury and thus lead to
further investigations. To paraphrase Master Horn, in this case it would
be wrong to disallow the disbursement simply because other counsel might have
obtained an opinion on the brain injury from a neurologist before pursuing
testing by a neuropsychologist.

[58]        
The defendants also make the argument that retaining Dr. Malcolm’s
services was disproportionate to the nature of the claim and the amount of the
ultimate settlement. The amount of the settlement would not have been known at
the time that Dr. Malcolm was retained. Thus, it is not appropriate to use that
figure to measure the proportionality of the disbursement.

[59]        
The concept of proportionality is relevant when addressing the necessity
and propriety of retaining multiple experts in an apparent “simple” claim.
However, at the time that Malcolm & Associates was retained, the simplicity
or complexity of the plaintiff’s claim was unknown.

[60]        
Nevertheless, despite this disbursement being proper, the amount charged
by Malcolm & Associates is not reasonable.

[61]        
The concept of proportionality is relevant in assessing the
reasonableness of these charges: Fairchild v. Vancouver Coastal Health
Authority, 2011 BCSC 616 at para. 145. That is particularly
so when the opposing party has no control over the contract for fees and
services negotiated between plaintiff’s counsel and Malcolm & Associates.

[62]        
In this case, I find that the amount claimed for propriety test costs
and administration to be unreasonable. Those two amounts ($728. 70, inclusive
of taxes) are more properly part of office overhead and ought not to be visited
upon the defendants.

[63]        
The defendants also challenge the time spent by the psychometrists and Dr. Malcolm
himself in testing, interviewing and dictating the eventual report. The records
showing the time spent by Malcolm & Associates on this matter were in
evidence. While the onus remains on the plaintiff to justify the reasonableness
of this charge, the defendants have not provided any contrary evidence
demonstrating that the time spent was excessive or unnecessary for this type of
testing or practice. Accordingly, these charges will be allowed.

Assessment Costs

[64]        
Unless offers to settle should be considered by the registrar, the
plaintiff is entitled to her costs for this assessment– with the exception of
those costs relating to the disallowed disbursements (i.e. the MRI, Dr. Stimac,
Ms. Phillips).

[65]        
Either party is at liberty to re-set this matter for a continuation if
s. 8 of Appendix B is engaged.

[66]        
The reasonableness of Dr. Malcolm’s charges for his attendance at this
hearing can be further assessed but the parties are encouraged to reach an
agreement on this amount.

Summary

[67]        
The charges claimed by the plaintiff with respect to the MRI, Dr. G.
Stimac and Ms. Barbara Phillips are disallowed in their entirety.

[68]        
The charges of Malcolm & Associates are reduced by $728.70. The
charges relating to Dr. Malcolm’s attendance at the assessment are subject to
further assessment unless the parties can reach agreement on this item.

[69]        
As well, a continuation of the assessment may be set down if the parties
are unable to reach consensus on the total amount of costs and disbursements
awarded to the plaintiff, bearing in mind that a compromise was reached on all
other items in dispute without the involvement of the registrar.

                    “C.P.
Bouck”                  

Master
C. P. Bouck